82 Mo. L. Rev. 643 (2017)
Forcing People to Choose Is Paternalistic

handle is hein.journals/molr82 and id is 665 raw text is: 








   Forcing People to Choose Is Paternalistic

                             Cass R. Sunstein

                               ABSTRACT

        It can be paternalistic to force people to choose. Often people do
     not wish to choose, but both private and public institutions ask or
     force them to do so, thus overriding their wishes. As a result, people's
     autonomy  may  be  badly compromised   and their welfare may  be
     greatly reduced. These points have implications for a range of issues
     in law and policy, suggesting that those who favor active choosing,
     and insist on it, may well be overriding people's preferences and val-
     ues, and thus running afoul of John Stuart Mill's Harm Principle (for
     better or for worse). People have limited mental bandwidth, and forc-
     ing choices can impose a hedonic or cognitive tax. Sometimes that tax
     is high.

                            I. INTRODUCTION

     When   you enter a taxicab in a large city, and ask to go to the airport,
you  might well be asked  this question: What route would  you like me  to
take?
     If you are like many people, you will not welcome  that question. You
might even  hate it. After all, it is the business of the driver to know how to
get to the airport, and in any case the driver almost certainly has access to a
GPS  device.  For you, the question - asking  you to choose -  is a kind of
mental  tax, cognitive for sure (because of the need to think) and possibly


Robert  Walmsley University Professor, Harvard University. I am grateful to Thomas
Lambert and the editors of the Missouri Law Review for hosting a superb conference
on nudging and libertarian paternalism in October 2016; the discussions much informed
my treatment here. Special thanks to Bruce Ackerman, a terrific commentator and col-
league for several decades, for suggesting, back in 2014, that I produce this essay. It
took a while.

Thanks too to Elizabeth Emens, Eric Johnson, George Loewenstein, Eric Posner, Ric-
cardo Rebonato, Lucia Reisch, and Adrian Vermeule for valuable comments on a pre-
vious draft. I am also grateful to participants in a legal theory workshop at Yale Law
School and to audiences at Dartmouth College for excellent suggestions and to Mat-
thew Lipka for superb comments and research assistance. I have drawn on previous
presentations and some of the material presented here appears, in earlier form, in
CASS R. SUNSTEIN, CHOOSING NOT To CHOOSE: UNDERSTANDING  THE VALUE OF
CHOICE (2015); the goal of this essay is to present a simple, significantly clarified and
revised, expanded, self-contained version of one argument in that book.

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